Equality of Arms – Defining Human Rights in the Jurisprudence of the International Criminal Tribunal for the former Yugoslavia

Abstract

The success of the International Criminal Tribunal of the former Yugoslavia in fulfilling its mandate turns on the justness of the decisions it renders. To ensure that its judgements are accepted by the international community as just decisions the Tribunal is directed by the Report of the Secretary-General to adhere fully in its criminal proceedings to internationally recognized human rights standards. This directive suggests that the Tribunal should adhere to the interpretation of human rights principles as understood by other jurisdictions. However, in some instances the Tribunal has, by virtue of its statutory requirements, been unable to follow those standards as understood by other jurisdictions and it has justifiably adopted a contextual approach to the application of certain human rights principles to its criminal proceedings. In other instances, however, the Tribunal has purported to adhere fully to certain human rights principles as adopted by other jurisdictions. This has occurred with respect to the Tribunal's adherence to the principle of equality of arms. In this instance, however, the Tribunal's purported adherence to that principle has led to a situation where that adherence has had a negative effect on the justness of the decisions it has rendered. In the following it is argued that with respect to the application of the principle of equality of arms the Tribunal should adopt a contextual approach if the decisions it renders are to be just decisions and are to have the appearance of being just decisions.